Hot Water for Baroness Hale

After the lynch mob of outrage stirred up by the recent Divisional Court ruling on Article 50, it is a brave judge indeed who would say anything in public about the question of whether and how Parliament (i.e. the legislature) needs to approve the notification of the European Council under Article 50 of the UK’s intention to leave the EU.

Baroness Hale was therefore perhaps pushing the envelope of bold courage to make a speech in Malaysia on 7 November and refer to that precise issue before the Supreme Court have heard the case.

Much of what she says was fairly mainstream UK constitutional law lesson 1.1, e.g. that the UK constitution is different from most other countries in that its governing principle is that sovereign power is not distributed between the three branches of government (executive, legal and judicial), but resides solely in Parliament. “Parliament can make or unmake any law. Whether there are any limits to that is contested, as we shall see.”

She also gave an interesting insight into how she at least sees the Supreme Court to have become ‘the guardian of the constitution’ –

It gives rulings upon the validity of laws passed by the devolved legislatures in Scotland, Wales and Northern Ireland.

Judicial review – “In this we see ourselves as the servants of the sovereign legislature” keeping the Government and Executive within the powers which Parliament has given them.

It protections fundamental rights from encroachment by the State

Furthermore, there is possibly a hint that she, as the Divisional Court below her did, may seek to approach the Article 50 case as very much a question of statutory interpretation – “rules of statutory interpretation which govern the way in which we read legislation and enable us to safeguard fundamental rights and the rule law.” These rules were (1) the principle of legality and (2) that “a statute of fundamental constitutional importance, such as the European Communities Act 1972 itself, cannot be impliedly repealed or amended by a later ordinary statute. It has to be done expressly.”

The question that Baroness Hale may now regret having posed was “whether it would be enough for a simple Act of Parliament to authorise the government to give notice, or whether it would have to be a comprehensive replacement for the 1972 Act.” As has since been accepted by the Supreme Court spokesman who defended her speech, this question was not dealt with in the High Court.

In reality, Baroness Hale has done no more than air a question that has been raised publicly, and indeed a question that may well be addressed in the forthcoming Supreme Court hearing. She did not state what her own opinion was on this, or on the issue that was explicitly before the High Court, namely whether giving notification to the European Council falls within the prerogative powers of the Crown in the conduct of foreign relations or whether it falls foul of the rule that the prerogative cannot be used in such a way as to frustrate or substantially undermine an Act of the United Kingdom Parliament. However, given the current febrile mood surrounding any judicial pronouncements on this issue, perhaps her speech on the topic of the Supreme Court as guardian of the constitution could have diplomatically left her audience without a reference to the current chapter in its development as such a guardian, rather than risk the adverse comment that has already been occasioned.

7 thoughts on “Hot Water for Baroness Hale”

Parliament passed a law authorising a referendum.This Act was presumably passed by the Commons,the Lords,and then signed by the Queen! Surely there was a very strong presumption that clause 50 would be triggered if the referendum decided so? Otherwise the Supreme Court is telling 17 million British people that the whole thing was a waste of time and that the largest number of votes ever recorded on any issue in the history of the British Isles was in fact a bad joke played by the “liberal elite” on a public judged by them to be to dumb to know their own best interests !
If there was a serious issue over the legality of the operation surely judges and lawyers would have raised it beforehand not waited until a result came in that they disapproved of?

1. The fact that the referendum was advisory only was clear before the referendum and is common ground between the parties to case. This is consistent with parliamentary democracy where people elect representatives to make decisions on their behalf.

2. The issue in the case is not whether Brexit will take place but which branch of government is required to make the decision. The fact that, in a parliamentary democracy that places sovereignty in Parliament, the answer to that question should be parliament is not wholly surprising.

3. There isn’t, as you suggest, a serious issue about the legality of the operation, This case is concerned with the proper procedure for ‘Brexiting’.

It is simple, but not in the way ForcedAdoption has it. The court case is not about whether Art 50 should be triggered, or whether the result of the referendum should be respected. It is just about whether the Government can trigger it or Parliament trigger it. The Referendum Act didn’t say which, and Cameron refused to have any Plan B for a leave vote – so it was only after the vote that May decided to try having Govt trigger it instead of Parl. So if the Supreme Court do back the High Court, that will not stop Art50 being triggered at all – not overturning the referendum result, not a bad joke, not an overlooked serious issue of the legality of whether Art50 could be triggered.
It is worth looking in more detail though at the spin that has persuaded so many people that the case is somehow about the judges rejecting the referendum result.
First there is a wrong assumption that giving the job of triggering Art50 to Parl instead of Govt must be the same as overturning the referendum result. PM May was a remainer but respects the result – many remainer MPs will do the same, & whips will bring many other Tories round. So the chances of Parl refusing to allow Art50 to be triggered, once they have to nail their colours to the mast, are slim to zero, pretty much the same as were the chances of Theresa May refusing to trigger it when it was her turn to declare her position.
The speculation has been whipped up because if it goes to Parl then the politics means some MPs will probably try to use that to add amendments to say negotiations must be conducted with reports back and a say for Parl on the soft/hard direction. But Govt has a majority and whips, so starting point must be that those attempts would fail. Even if any amendments succeeded, they would just be about how the process is managed, not about whether we do leave. Even if SNP somehow got a say, they just want Scotland independent and in EU, they don’t care if England/rest-of-UK leaves.
Obviously some die-hard desperate remainers might be clinging to a fevered hope that this court case could be a first step in a very long chess game (and some die-hard conspiracy-theorist leavers are finding plots everywhere). But even then they could only be hoping May gets such a bad deal from EU, in a year or so, that they can then campaign for her to put it to a 2nd referendum (as not being what we voted on in the original one), then hoping it would be rejected and we could somehow withdraw the Art 50 notice (unlikely) and stay in EU after all – so they would need Parl to wangle a right to reports on progress, as otherwise the bad deal would only come out too late to stay in. But that is all political speculation in minds of some die-hard remainers/leavers about a long shot with many, many ifs and buts further down the line – it is several stages removed from what the courts are deciding on now (and we need our judges to decide on the law, not on politics). Other MPs might want to try for amendments so Parl can dictate to Govt on whether we should go for hard or soft or medium Brexit, but that is still not about whether we get some kind of Brexit versus no Brexit – and again it is not what the court case is about.
Whatever anyone thinks about the “liberal elite”, we all know the tabloids regularly spin &/or invent stories, to sell papers &/or to push their political agenda. Currently it suits them to peddle the simple lie that this case is about whether Brexit should happen at all (instead of just about whether Govt or Parl can trigger Art50), and that judges are deciding it based on whether they like Brexit/referendums/voters or not (instead of just on which powers in our constitution are Govt’s and which are Parl’s). What does worry me about this case (and particularly about Baroness Hale’s remarks) is that in a power squabble between Parl & Govt, the courts are stealing some of the constitutional power from both of them while they are looking the other way – but that has nothing to do with dis/respecting referendum results.
To be fair on the civil service lawyers, it is not their fault that there wasn’t a settled view before the referendum about whether Govt or Parl would trigger Art50 if the vote was leave. That is entirely down to Cameron who chose not to put anything in the Referendum Bill about it (Acts for other referendums have said expressly what must happen after result) and then in the run-up to the referendum insisted (just unbelievably arrogantly & recklessly) that the civil service must not do any planning whatsoever for a leave result. (Equally Farage, Boris, Gove & co didn’t bother with any planning either, which is a bit hard to blame on a “liberal elite”.)
Once allowed to work on it, I expect civil service lawyers told May the safest legal course would be to bring a quick one-line Bill to Parl giving PM authority to trigger Art50. But Govt decided to dig its heels in over principle of its guarding its rights versus Parl’s rights, and that is what got us to this court case. If they lose at Supreme Court then they are just back to bringing that one-line Bill anyway, so the result is just a few months delay on that.
The rest is just hot air – tabloid lies, conspiracy theories, name-calling and over-excited political speculation on both extreme fringes.

The problem is the word presumption, for as I understoodit, this referendum, as others before them, was only ‘advisory’. That doesn’t mean that Parliament should ignore the result but neither does it mean that Parliament shouldn’t discuss the means by which it is performed.

What always amuses me now that the leavers have won, is how they accuse the remainers of wanting yet another referendum until they get the result they want. Yet that is exactly what the leavers have done for decades. How many is it now? Thankfully and with great relief, I won’t be around to see the full result of leaving, whether it is for good or ill.

The referendum was not deemed illegal, it was just non-binding. In a similar manner a political party might go to the polls on a manifesto as part of the General Election and one could say that the election result is at least in part a ‘referendum’ on their manifesto, but just because people voted for that party and they won does not automatically make their manifesto law as they still need to enact it through proper Parliamentary procedure in line with the principle of parliamentary sovereignty.

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